AG Should Combat Corruption, Not Facilitate it

over 1 year ago

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PRESS STATEMENT: The United Nations Convention
against Corruption (UNCAC) calls upon State Parties to take appropriate
measures for the protection of witnesses, experts, victims and whistleblowers
against retaliation or intimidation (Article 32 and 33).

"I am not joking. If I have 90
percent of evidence, I will charge the journalist, editor, assistant editor and
editor-in-chief. I am serious, no kidding. We have too many leakages of secrets
in Malaysia”.
Attorney General Tan Sri Mohamed Apandi Ali

The Centre to Combat Corruption
& Cronyism (C4) is in no mood for jokes, either!

The Attorney General’s (AG)
proposals to amend the Official Secrets Act (OSA) for lifetime imprisonments
and capital punishments on whistleblowers, is an unabashed act meant to conceal
the State’s dirty secrets away from the public.

The OSA is a preventive law, the
most impermeable type, and harnesses the power of deterrence through broad-spectrum
definitions, strict liability offences and allows extensive enforcement powers
that create culpability even when there is no criminal intent. The OSA does not
include a harm test nor public interest exceptions.

The wide net of the OSA over all
classes of official information means the act is not simply a tool to protect
national security. It has clearly acted as a shield to conceal the sins of
corruption, punish the whistleblower, and mushroomed a culture of impunity
while helping shape a kleptocratic political leadership.

Last June 2015, C4 released a
comprehensive position paper on the OSA, and has analysed how secrecy laws
facilitate corruption, and grows with it a culture of impunity.

The clandestine nature of the crime
of corruption and absence of individual victim pose unique challenges in
obtaining information of criminality and securing evidence to prosecute
wrongdoers. Witness and whistleblower accounts often serve as an invaluable
source of information on which law enforcement can gain insights into the
occurrence of corrupt acts and can provide incriminating evidence to secure
conviction.

The United Nations Convention
against Corruption (UNCAC) calls upon State Parties to take appropriate
measures for the protection of witnesses, experts, victims and whistleblowers
against retaliation or intimidation (Article 32 and 33). These may include
measures to ensure the physical and psychological protection of witnesses as
well as for providing evidentiary rules allowing a witness to testify in a manner
that ensures his/her safety. Similarly, Article 37(4) requires states to put in
place effective measures to encourage reporting by persons implicated while and
Article 39(2) on encouraging reporting to law-enforcement authorities. Malaysia
is a signatory of the UNCAC, and is obliged to respect and implement the
provisions of the conventions.

As such the proposals of the AG run
contrary to the UNCAC and the spirit of combating corruption.

Instead as top legal personality in
the country C4 urges the AG to:

1. Review
the OSA to fight corruption not facilitate it, and make it a legal right for
the public to obtain information, on issues not related to national security.

2. Enact a
law that deals with misconduct of public officials, when it comes to wastage
and leakage of public funds, bribery and outright corruption. This was tabled
previously for the AG’s consideration but received no traction and has yet to
be tabled in Parliament

3.
Strengthen the Whistleblower Protection Act, to enable a protective and
sustainable culture of whistle blowing in this country. It is only with better
protection will reporting about corruption become a reality. Amend S7 of the
Act to allow for better protection of the whistleblower, especially with regard
to confidential government information.

4. Amend the
MACC Act s 23 & 36 to allow MACC to go after public officials with
unexplained wealth, and for those who abuse public office for personal gain.

We are not amused!

The task of the Attorney General is
crucial in shaping strong anti graft laws in this country. Many proposals have
been tabled by the Bar Council and civil society, but have yet to receive a
response. So why then is the AG creating an impression that he is glossing over
the sins of corruption? That the corrupt can roam free during his tenure?

This article is for informational purposes only and should not be taken as legal advice. Every situation is unique and dependent on the facts (ie, the circumstances surrounding your individual case) so we recommend that you consult a lawyer before considering any further action. All articles have been scrutinized by a practicing lawyer to ensure accuracy.